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SHENDUR v. UNITED STATES

January 30, 1995

HARRIS SHENDUR, Petitioner, against UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 Petitioner Harris Shendur has moved under 28 USC 2255 to vacate his conviction after trial for possession of three (3) kilograms of heroin with intent to distribute in violation of 21 USC 812 and 841, as well as 18 USC 2. On April 15, 1992, I sentenced petitioner to ten years' imprisonment, after a downward departure from the United States Sentencing Guidelines on account of petitioner's age and medical problems. I imposed a fine of $ 250,000, based in part on the relatively minimal prison sentence imposed in consideration of the magnitude of the crime, and because the defendant had substantial real estate assets.

 Petitioner argues that he received ineffective assistance of counsel, that his fine amounted to cruel and unusual punishment, and that his sentence should be reduced under Title Eight, ยง 80001 of the Violent Crime Control and Law Enforcement of Act of 1994, 18 USC 3553(f).

 The petition is denied. No ineffective assistance of counsel has been shown, the fine imposed was reasonable, and petitioner as a supervisor of substantial illegal conduct cannot take advantage of Title Eight.

 II

 The issue of effective assistance of counsel was raised at the time of sentence on April 15, 1992 by a new defense counsel not involved in the trial, who was present - as was petitioner - when petitioner's right to appeal was outlined. No direct appeal was taken on that or any other issue. Section 2255 cannot be used as a substitute for direct appeal. See Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993). There is no support for petitioner's suggestion that his second attorney advised him not to appeal for any improper reason.

 Ineffective assistance is claimed primarily because counsel allowed petitioner to testify, but it was clear at the April 15 sentencing conference that this occurred at petitioner's own insistence. *fn1"

 Petitioner also argues that his first counsel should have insisted on a competency hearing. At the April 15 hearing, I found that reliable medical analysis confirmed petitioner's competency. No request was made by petitioner's second attorney at the time of sentencing that more evidence should be obtained. See Newfield v. United States, 565 F.2d 203, 207 (2d Cir. 1977). In addition, the Presentence Report indicates that petitioner demanded $ 90,000 front money for a large drug transaction and took numerous other steps inconsistent with lack of acumen.

 Petitioner further claims that an entrapment defense should have been pursued. Petitioner in his testimony, however, denied participating in the transaction, inconsistent with a claim of entrapment. See United States v. Mayo, 702 F.2d 62, 71-73 (2d Cir. 1983).

 III

 The $ 250,000 fine imposed was well within the Guideline range at offense level 41, permitting a fine from $ 25,000 to ten million dollars ($ 10,000,000). Inability to pay was never established. United States v. Stevens, 985 F.2d 1175, 1188 (2d Cir. 1993). Absent imposition of the $ ...


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